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Is Equal Protection of Laws, a misnomer in the Indian Supreme Court?


As a student of Law, I have grown with the conviction that the Goddess of Justice holds the balance offering “Equality for All” whether rich or poor, privileged or unprivileged, influential or commoner that she has chosen to blindfold herself in order to keep out of sight all such differences, so as to extend equal protection to all.

Nobody is above the law and Law is same for everyone is the principle which sustains the Rule of law in any functional Democracy. The idea that ‘law takes its own course’ irrespective of the position and person of the subject of its action, is fundamental to Rule of Law. The Court of law is the forum which ensures that this Article of Faith continues to be revered.But recent events in the Apex Court of the country have shaken one’s faith.One such was the arrest of some so-called Human Rights and Social Rights activists that ended up in a court ordered house arrest instead of custodial interrogation.

This special treatment was extended to them by carving out an exception that bypassed the entire legal process in the Country especially when a prima facie link as per initial police investigation, a prima facie link with a plot to assassinate the Prime Minister of India has been found.Should one dissent with this and question academically the Hon’ble Supreme Court at the bypass performed on the rule of law Rule of Law that has to be upheld by the Guardians of Constitution, there should be no contempt especially when Hon’ble Court itself has observed that that “Dissent is the safety valve of Democracy”.

India witnesses thousands of arrest per day, criminal procedure mandates arrest as the part of the investigation process, police interrogation is necessary to bring out the truth and after all it is the Judicial Magistrate who decides the extent of police remand. If one wants to avoid the arrest he can move to the court for an Anticipatory bail but this is to be done entirely at the level of Subordinate Judiciary. Now what the Hon’ble Supreme Court seems to be doing when it facilitates the accused to avoid the arrest by carving out an exception and tendering a very special treatment in the manner they did here, is nothing but bypassing the entire legal procedure for a group of influential people who can perhaps afford a battery of influential lawyers. What is the message of Apex Court to the Lower Judiciary and people of this country? What does they want to convey? Is it not differential treatment, privileged procedure and separate set of rules? Isn’t it like saying: “show me the face I will tell you the rule”?Unfortunately it seems to be so.

Legally speaking Article 14 of the Constitution mandates both Equality before law and Equal protection of laws. In this case Court has specially created an unreasonable classification privileging the judicial process for one group of people while depriving others and if we take Judiciary as a state organ within an extended meaning of Article 12 of the Constitution, this decision of the court itself is Ultra Vires the constitution as being violative of Article 14. My Lord this is the not mandate of Article 142 of the Constitution.

Just think! Where it is still an uphill task to get a matter accepted in the Supreme Court and bring it for regular hearing, where 12 to 15 years is the average time in which a normal case is decided and in a country where it is difficult for common people to even sustain a litigation in the Supreme Court, behind the façade of “Law taking its own course” there is a group of people who have a privilege of every kind from compelling the court to sit at 2’o clock in the midnight to an urgent listing and hearing of any trivial issue and most dangerously – getting the desired relief from the court.

How many people in this country get this privilege of arguing directly before the Apex Court,bypassing established procedures in order to get a bypass from them? Whether the Hon’ble Court will open its doors for a common man at 2’o clock in the midnight as it did for Yakub Menon or Whether the court will protect the “civil liberties” of thousands of under trials still locked up in jails as it protected in this case or whether the court will strike off the entire legal provision of arrests from the Criminal Procedure Code itself in order to bring the parity among all accused of criminal offences? If not, then what is so sacrosanct about Sudha Bhardhwaj or Varvara Rao that they cannot be even interrogated in police custody. Whether the Hon’ble Court has considered the fact that this delay of not taking them in custody will directly help them to manipulate with the evidence and will dent the entire investigation. Your Honour! This is an issue related to the security of our Prime Minister, he is not an individual but an institution, two of our Prime Ministers have already been brutally assassinated, Your decision really concerns me as an Indian citizen.

Nobody knows where this liberal romanticism will take us to, but this differential treatment and especially to those who are accused of plotting against the integrity of the country is definitely unacceptable to the entire nation, Sir.

Times will come and go, regimes will change, eras will pass, but the credibility of the Institution of Judiciary must be sustained.It is the oxygen of a functional democracy, a new lease of life to law-abiding citizenry suffocated by lawlessness, crime, anarchy and revolution.

Sir, the eyes of Indians look at this structure at the Bhagwan Das road with great hopes, it is their temple of Justice.Before they lose their faith and drown in despair the Hon’ble Court must restore their hope. The recent sequence of events including this latest episode has unfortunately found the highest Institution of judiciary in a position of compromise this is not healthy for the future of Rule of Law. If the Court desires the respect for law, it must extend the sphere of equality before law rather than truncate it in the interests of prima-facie law-breakers.Otherwise an important pillar of our democratic Constitutional setup can suffer a serious crisis of credibility differential treatment continues compromising the sanctity of the Institution as well as the Unity and Integrity of the country.

-Shubam Tiwari

NALSAR , Hyderabad